Monday, November 20, 2017

Text and History Fed Soc Style

By Eric Segall

Professors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: "Originalism and Textualism.'"

There are a number of ironies in this Federalist Society call for textualist-originalist judging. First, Barnett using Lochner to support his textualism/originalism thesis is interesting given that there is barely a word about text or history in the entire majority opinion. Moreover, as my forthcoming book "Originalism as Faith" will argue, the founding fathers either believed in the "clear error" version of judicial review, or maybe just a strongly deferential system. There is no plausible argument they believed in an aggressive, Lochner-style form of judicial review. And of course, judicial review is nowhere mentioned in the Constitution. If Barnett and Fed Soc want to defend Lochner's version of judicial review, it will have to be through a living constitutionalism type argument not a textualist-originalist one.

Second, focusing on text gets judges almost nowhere when resolving constitutional cases, just like it was irrelevant to the majority in Lochner. Most constitutional litigation arises under clauses that are hopelessly vague and general such as the First Amendment's speech and religion clauses, the Fourth, Fifth and Sixth Amendment's criminal procedure rules, which are mostly unclear, and the Fourteenth Amendment's equal protection and due process clauses. All judges are textualists in the sense that if the text is clear, the judge will follow it, but that rarely if ever happens in constitutional law.

Maybe what the Federalist Society is devoted to is the idea that judges shouldn't make up rights and principles that aren't enumerated in the Constitution. But that can't be right for two reasons. First, there is considerable support these days among Federalist Society members for the idea that the Privileges or Immunities Clause (and maybe the Ninth Amendment) protect unenumerated rights. Barnett has worked hard to make both of those ideas mainstream among Federalist Society followers. The main focus of the Society seems to have switched from anti-Roe, anti-judicial activism to the thesis that the Justices aren't doing enough to protect the right kind of (i.e., economic) rights, enumerated or not.

Second, although I have no proof, my strong guess is that most of the people clapping wildly for textualist judges at the convention agree with the equal state sovereignty principle the Court espoused in Shelby County, the anti-commandeering principle of Printz v. United States, the color-blind principle advocated so long by the conservatives on the Court in numerous affirmative action cases, and the sovereign immunity principle applicable to suits against states by their own citizens that the Court concocted in Hans and reaffirmed in Seminole Tribe. None of those important constitutional limitations on governmental discretion can be found anywhere in the Constitution's text.

As far as the originalist part of textualist-originalist judges is concerned, Barnett, and most Federalist Society members, recognize that in actual, real-life constitutional litigation, originalist sources will not drive results. The constitutional interpretation/constitutional construction framework championed so strongly by Barnett, with Larry Solum and Keith Whittington, among many others, recognizes that in most cases the Justices' "underlying normative commitments" will drive decisions. In other words, the history behind the adoption of most constitutional provisions will be too contested or unclear to obviate the need for constitutional construction based on the judges' [modern] values.

So what does it mean for lawyers, law professors and judges to toast many times over, as happened at the convention, judges who are textualists-originalists? I really don't know, but my guess is that it has something to do with the "But Gorsuch" stress balls that were handed out during the convention (I'm not making that up). By that I mean, what the Federalist Society means by "textualist-originalist" judges are judges, like Gorsuch, who were either members of the Federalist Society, or at least in general accord with the Society's principles (Gorsuch spoke at the convention Friday night). Chief Justice Roberts, Justice Alito, and the late Justice Scalia, of course, fall in the same category.  Interestingly, all three voted for the four non-textual, and I might add non-historical, principles I highlighted above, and dollars to doughnuts, so will Justice Gorsuch.